The Trump administration is asking the Supreme Court to preemptively step into the legal fights over its decision to end the Obama-era Deferred Action for Childhood Arrivals program and decide this term whether the move was lawful.
Solicitor Noel Francisco filed a petition with the court on Monday asking the justices to hear their case and issue an opinion before the 2nd, 9th and D.C. Circuit courts of appeals have ruled.
In February, the Supreme Court denied the government’s request to hear its appeal of a district court’s order forcing the government to maintain the DACA program ahead of the 9th Circuit's review. The justices said then that they assumed the appeals court would proceed expeditiously.
Francisco told the court Monday “that has not happened.”
“Although the court of appeals heard oral argument on May 15, 2018, it has yet to issue its decision,” he said.
“And while no one, respondents included, contends that the legality of DACA’s rescission will be finally resolved without this Court’s review, absent prompt intervention from this Court, there is little chance the Court would resolve this dispute for at least another year.”
The Department of Homeland Security announced in September 2017 it is winding down the program, which protects young people who came to the country illegally as children.
Francisco said the New York-based 2nd Circuit, the D.C. Circuit and the California-based 9th Circuit all have lower court rulings before them that conclude the rescission of DACA is likely unlawful.
He said those decisions are wrong.
The challengers in those cases have argued the administration’s decision flouted notice and comment rulemaking requirements, was arbitrary and capricious and denied so-called Dreamers equal protection and due process of law.
But the government argues that the Department of Homeland Security has concluded the DACA policy is unlawful and risks being invalidated by a separate multistate lawsuit led by Texas challenging the Obama-era policy.
--Updated 7:20 p.m.